In A Confusing World of Legalese – Creative Counsel

December 19, 2014

Your Questions Answered!
Write in with your questions about the confusing legalities in the world of music or filmmaking, and make informed, professional decisions that affect your creative work. Manojna Yeluri, Founder of Artistik License, clears the fog with her regular column on the questions you ask, to get the answers that you need.

Artistik License is a legal education and services platform dedicated to addressing the needs and queries of artists and creative entrepreneurs in India.

One of the most important issues to be discussed and understood by the band relates to determining who owns the musical content created by the band members. The lack of clarity on this issue has the potential to create a lot of trouble, emotionally, legally and monetarily. A copyright can be individually or jointly owned. So long as two or more content creators intend for their contributions to be performed or presented as a whole, they will be considered joint copyright owners over the final creation. Let’s take the example of a band comprising four members – a lead vocalist, a drummer, a keyboardist and a guitarist. The vocalist is the lyricist and she writes all the lyrical content on her own. The other members of the band sit together and write the music or the composition to go with the lyrics. Now since all four members will perform the lyrics and the composition as a composite whole, they will be considered joint copyright owners of the song. If they choose to record their song and fund the resources for that themselves, then they will also be considered joint copyright owners of the sound recording.

What’s important to remember in the context of joint copyright ownership, is that like in the case of mostly everything related to intellectual property, there is a lot of room for negotiation. Going back to the example of our band, the vocalist and the guitarist may choose to draw up a contract with the remaining members of the band wherein only they jointly own the music and they buy the rights off the other members. In the absence of any explicit mention though, the band jointly owns the rights over the music they make.

Royalty payments and revenue divisions depend on copyright ownership and contractual agreements. If the band agrees to joint ownership over the music, then royalties and revenues may be divided equally among all members. It is possible to change this by way of negotiating a separate arrangement among the members. For instance, it is possible that all the members of the band enter into an agreement whereby they all receive an income proportionate to an agreed upon percentage that might have been determined on the basis of a number of reasons including their contributions to the creative process or their initial investment in the creation of the band.

Royalty payments also depend on whether the members of the band are part of copyright collection societies – this becomes particularly important when the band is touring internationally. In such cases, it is important to determine whether the individual members or the band as a whole needs to be registered with a society or association.

The band’s name is a very important intellectual property and has been the subject of a great deal of litigation and dispute in the music industry. A band’s name cannot be copyrighted but needs to be protected by way of a trademark – this applies to both the name of the band as well as a corresponding logo, if any.

Understanding who owns the trademark over the band’s name is very important, particularly in the event of:
(a) licensing the name for endorsements and
(b) the band breaking up.

In the first scenario, just as in the case of copyright ownership over the music, the trademark owner of the band’s name will be able to authorize advertisements, endorsements and promotional material that will feature the band’s name. In the second scenario that is in the event of the band breaking up, an agreement as to who owns the name will determine whether certain members of the band can continue working under the same band name.

In the excitement of signing onto a major recording or endorsement deal, it is possible that the band as a whole, forgets to clarify certain basic issues. A few things that need to be discussed and decided include;

(a) Copyright ownership over the musical content
(b) Ownership of the band’s name
(c) What happens in the event of a change in the band’s line-up? Will the band continue under the same name or not?
(d) Who gets how much from the revenue and royalties earned?
(e) Will there be a key – member of the band? Meaning will there be someone who is elected as the band’s representative when it comes to entering into deals on behalf of the band?
(f) Identify issues that shall be considered the band’s internal affairs
(g) Do you want to incorporate the band as a company?
(h) What kind of merchandise and endorsements would you like the band to be associated with?
(i) Are individual members of the band free to pursue collaborations and projects of their own?

Investing in basic documentation is a very important step for any band. The kind of paperwork involved, really depends on the work that the band is pursuing. Some things that need to be in writing, include an agreement on what happens in the event of the band breaking up, who owns the content and the name of the band and what’s the revenue break up. There’s paper work that the band needs to keep especially with respect to situations where they are being hired to perform at private events, corporate events and festivals. When entering into any arrangement with a third party, always remember to put the terms down in writing and if the band is going to be pitching an idea, then it’s always wise to keep a really simple confidentiality agreement or a non-disclosure agreement handy. A few more tips can also be found in this article titled, Little Legal Things for Bands.

Manojna Yeluri is an independent legal consultant advising artists and startups on issues related to IPR and entertainment law. She also founded and runs Artistik License – a legal education initiative for artists working in India that’s meant to empower artists through simplified legal knowledge. When she's not talking to artists, you can find her drinking tea and trying her hand at all kinds of DIY craft projects. You can read more about her work with Artistik License at artistiklicense.wordpress.com